Teachers claim ‘entirely hopeless’, says Justice Cottle

The three teachers who filed a case against the Government because they were not reinstated after resigning to contest the 2010 general elections have lost their claim at the Eastern Caribbean Supreme Court.

The ruling, which was handed down on February 10, 2016, by Justice Brian Cottle, stated that the claim was struck out because it was “entirely hopeless”.{{more}}

The three claimants – Elvis Daniel, Addison Thomas and Kenroy Johnson – resigned from their posts as teachers so that they could contest the 2010 general elections, under the belief that they would be reinstated if unsuccessful, pursuant to Article 16 of the Collective Bargaining Agreement (signed November 3, 2005), entered into by the Government and the SVG Teachers Union (SVGTU).

Article 16 states: “A member of the union of at least three (3) years standing, shall on application, be granted leave-of-absence to contest national/general/local election. The leave of absence shall be no pay leave for a period not exceeding six (6) months. In the event that the member is unsuccessful, that member shall return to his/her original post or one of equivalent status, all benefits intact. The resumption of duty must be at the beginning of a school term.”

However, the Court found that Article 16 of said agreement contravenes Section 26 (1) (d) of the Constitution of St Vincent and the Grenadines, and as such becomes void, because Section 101 mandates that the constitution takes preference where any other law is “inconsistent” with it.

Section 26 (1) (d) states: “No person shall be qualified to be elected or appointed as a representative or senator… if he – (d) – subject to such exceptions and limitations as may be prescribed by Parliament, holds or is acting in any public office or is a paid member of any defence force of Saint Vincent and the Grenadines.”

In addition to this, the Court found that the Collective Bargaining Agreement is null and void because it purported to grant benefits and rights to the claimants that “only the parliament by a two thirds majority was competent to confer.”

Moreover, the Court ruled that reinstating the teachers was beyond the authority of the Government, as “only the Public Service Commission has the power to hire and such power is to be exercised independently, and not upon direction of the Government.”

The ruling also stated: “The clear readings of section 26 (1) (d) means that a person is simply not qualified to be a candidate while he continues to hold public office as a teacher. The laudable aims of the article cannot trump the clear constitutional provision.”

Counsel for the claimants Shirlan Barnwell and Ruggles Fergusson had argued that the teachers were wrongfully and unlawfully forced to resign from their posts as there was no other option that would have allowed them to stand for elections.

However, the Court ruled that the claimants did indeed have a “stark choice” of either resigning or remaining as teachers.

When the teachers had applied to the Public Service Commission for leave, their applications were neither granted nor refused. Instead, a letter, dated November 23, 2010, was issued to them, which pointed out Section 26 (1) (d) of the constitution and invited a response.

As this letter was issued three days before the deadline for submission of candidates for general elections, the teachers made the decision to resign.

On this matter, Justice Cottle’s ruling outlined: “The Public Service Commission merely pointed to the applicable constitutional provision and asked the claimants what their position was to be. It was the claimants who clearly felt that they would run afoul of the Section 26 (1) (d) of the constitution unless they resigned prior to nomination day.”

Justice Cottle’s judgement suggested that the current constitutional provisions are “too restrictive” and that some provision, along the lines of that set out in Article 16 (of the agreement), is “desirable”.

“That, however, is a matter for constitutional reform and not for this court,” he said.

Additionally, no order as to costs were made – as is usual in such matters.

Up to press time, SVGTU president Oswald Robinson could not be reached for comment. (JSV)